Richard Duhaime v. John Hancock Mutual Life Insurance Company

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
Nos. 05-1485
06-1209
RICHARD DUHAIME, ET AL.,
Plaintiffs,
____________________
THOMAS W. OLICK,
Plaintiff, Appellant,
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, ET AL
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Thomas W. Olick on brief pro se.
Edwin G. Schallert and Debevoise & Plimpton LLP on brief for
appellees.
June 28, 2006

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Per Curiam. After pursuing an earlier appeal in this
court, Olick v. John Hancock Mut. Life Ins. Co., 2004 WL 1563260
(1 Cir. 2004) (per curiam), and initiating further district court st
proceedings, appellant Olick again seeks appellate review.
Assuming familiarity with our prior opinion, we affirm the orders
in question substantially for the reasons recited by the district
court, adding only the following comments.
First. In No. 05-1485, appellee John Hancock suggests
that our review does not encompass the November 30, 2004 ruling,
but is instead confined to the February 28, 2005 order denying Rule
59(e) relief. Although Olick sought to file a separate notice of
appeal from each order, the first one was not accepted for filing,
for reasons that he now challenges. If it were true, as Olick
asserts, that the first notice of appeal was rejected simply
because it was unaccompanied by the required filing fee or because
it listed the wrong “session identification” at the end of the case
number, his challenge would have potential merit. But we need not
explore these issues. Olick’s intent being clear, and Hancock
having suffered no prejudice, we conclude that the notice of appeal
filed on March 21, 2005 sufficed to appeal from both orders. See,
e.g., Marie v. Allied Home Mtg. Corp., 402 F.3d 1, 8 (1 Cir. st
2005). The challenge to the court’s refusal to extend the time to
pay the filing fee is thus moot.

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Second. In No. 05-1485, just like in the prior appeal,
Olick advances two basic complaints: (1) as to the four policies,
he charges that Hancock has not made settlement offers that comply
with the arbitrator’s decision; and (2) as to the seven policies,
he charges that Hancock improperly excluded them from the ADR
process entirely. Both arguments stumble right out of the gate.
As he now acknowledges, Olick has relied on the wrong version of
the settlement agreement–-the original version filed in June 1997,
rather than the amended version filed in October 1997. He attempts
to shift the blame for this oversight, complaining that neither
Hancock nor the court advised him of or provided him with the
amended agreement. Yet Olick had constructive notice thereof; the
amended agreement was listed on the docket, for example, and was
prominently mentioned in the district court’s opinion adopting
same. See Duhaime v. John Hancock Mut. Life Ins. Co., 177 F.R.D.
54, 59, 62, 73 (D. Mass. 1997). An affirmance here would be
permissible on this basis alone.
Third. Olick’s claims with respect to the four policies
also falter on other grounds. We agree with the district court
that Olick “has failed to demonstrate in any comprehensible fashion
that the Hancock offer[s] indeed deviate[] from the arbitrator’s
award.” Moreover, Olick’s arguments in this regard come too late.
Prior to the first appeal, the district court denied his motion to
compel without prejudice to his making a showing of noncompliance

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with the arbitrator’s decision. Olick sought reconsideration but
attempted no such showing, and on appeal we dismissed the
allegations of noncompliance as “unsupported.” Back before the
district court, he stated that this court had “directed” him “to
file proof” as to why Hancock’s offers were insufficient; our
opinion contained no such directive. And we find nothing in the
allegations now advanced that could not have been raised earlier.
Fourth. In a separate argument concerning one of these
four policies, Olick complains that Hancock has made no settlement
offer at all. He faults Hancock and the district court for “simply
ignor[ing]” this allegation, but it is he who is in default. He
did not raise this matter in his August 2003 motion for
reconsideration (after receiving Hancock’s offers), nor on appeal
(voicing no objection to our statement that offers on “each of the
four” claims had been made), nor in the ensuing motion to compel
compliance. The first reference to the lack of such an offer
appeared in the memo accompanying that motion, but no specific
complaint was voiced in this regard. Thereafter, neither in his
motion for preliminary determination nor in his motion for
sanctions did Olick raise the issue. Understandably, therefore,
the court did not discuss it in its November 30, 2004 decision.
Not until the memo accompanying his motion for reconsideration did
Olick explicitly raise an objection about the lack of an offer.
While we do not know if the charge is true (the record on appeal

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neither confirms nor refutes it), Olick has forfeited his
opportunity for judicial review thereof. See, e.g., Venegas-
Hernandez v. Sonolux Records, 370 F.3d 183, 189-90 (1 Cir. 2004) st
(noting “usual rule that parties cannot use Rule 59(e) motions to
raise new arguments that could have been made before judgment
issued or to undo their own procedural failures”).
Fifth. The claims involving the seven policies were
excluded from the ADR process on claim-preclusion grounds, inasmuch
as claims involving those same policies had been the subject of a
1995 NASD arbitration award. In Olick’s view, the preclusive
effect of the prior arbitration was itself an issue for the
arbitrator. He relies on three main arguments. He first asserts
that determining arbitrability here is essentially equivalent to
determining class membership: once the latter is established, all
further disputes must go to arbitration. This argument sweeps too
broadly, for it would deem arbitrable various disputes that have
generally been held to be matters for the court. See, e.g., Marie,
402 F.3d at 11-15 (whether litigation-related activity amounts to
waiver of arbitration); John Hancock Mut. Life Ins. Co. v. Olick,
151 F.3d 132, 137-39 (3d Cir. 1998) (preclusive effect of prior
court judgment).
Olick also contends that the claim-preclusion issue is a
question of “eligibility” to participate in the ADR process, which
means that, like all such questions, it is to be resolved in the

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same manner as substantive claims for relief–-i.e., first by the
CRT and then if necessary by the arbitrator. Whether or not
Olick’s characterization is correct, this argument is flawed; all
eligibility questions are not resolved in that fashion, as a glance
at the “preliminary review” provisions makes clear.
Finally, Olick alleges that two provisions of the
settlement specifically contemplate that claim-preclusion issues
would be handled by the arbitrator. The first calls for an award
to be “offset” by any “prior relief” received by a claimant. Yet
claim preclusion is not an “offset” mechanism. And this provision
refers to “complaint[s] filed with” Hancock, which is not the
situation here. The second provides that, absent a written request
for exclusion, a class member would be bound by the settlement
despite having “previously initiated ... individual litigation.”
The context makes clear that this refers to pending actions.
Moreover, the latter two arguments were untimely, having
first surfaced in Olick’s motion for reconsideration. Such
tardiness is especially notable given the earlier round of district
court proceedings and our suggestion that Olick might again be able
to raise the matter upon the filing of a “proper” motion.
Sixth. One of these seven claims made it through the CRT
stage, only to be deemed ineligible prior to arbitration. Noting
that all CRT decisions are binding on Hancock (with exceptions not
here relevant), Olick argues that Hancock was obligated to accept

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the CRT’s implicit finding of eligibility. Yet, as mentioned
above, all eligibility questions are not submitted to the CRT, and
Olick has provided no reason to think that the CRT actually
considered that issue here.
Seventh. As to the merits of the claim-preclusion issue,
Olick does not argue that the 1995 NASD award was entirely lacking
in preclusive effect, and properly so. See Olick, 151 F.3d at 140
(noting “parties’ intentional adherence to a binding principle of
finality similar to res judicata as applied to arbitration awards
rendered by the NASD”). Instead, he advances various reasons--
often, again, in untimely fashion--why claim preclusion should not
apply here. Each proves unavailing. He asserts, with little
elaboration, that the NASD claims and the class claims involved
different matters entirely. Yet a review of the available NASD
materials (complaint, brief and ruling) demonstrates some overlap
between the two sets of claims. Indeed, the degree of overlap may
be higher than first appears; the record contains a June 4, 1998
affidavit from Olick, submitted in connection with the class suit,
which focuses on a key issue involved in the NASD arbitration
(alleged misrepresentations that mortality costs would remain
constant).
Olick also contends that his class claims could not have
been pursued in the NASD arbitration because they relied in part on
newly discovered evidence, some of which had been concealed by

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Hancock. Yet he offers no description of such evidence. He
contends that NASD rules forbid arbitration of disputes involving
life insurance policies, but he took the opposite position before
the NASD, with obvious success. And he emphasizes his pro se
status at the time the NASD arbitration was initiated, but
acknowledges that he subsequently obtained counsel who prepared the
brief and attended the hearings.
Eighth. In No. 06-1209, Olick appeals from the denial of
a recent motion asking that the November 30, 2004 ruling be vacated
and the district court judge be recused. We see no basis for
either request. Olick complains that he was not advised of various
filings and that some of his own submissions were never filed. As
to the former, docketed matters were listed on the docket. And
Olick provides no support for his suggestion that he was entitled
to be served with or notified of all class action filings. As to
the latter, we note that Olick has been enjoined from filing
further papers in this matter without court approval (a ruling not
challenged on appeal). And what appears to be his chief
complaint–-that his first notice of appeal was not accepted for
filing-–is moot for the reasons indicated above.
Affirmed. The motion in No. 05-1485 to file a
supplemental brief and appendix is denied.

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